Can a roof garden push a building into the higher-risk category under the Building Safety Act 2022?

A recent decision of the First Tier Tribunal (FTT), Blomfield and others v Monier Road Limited, has considered whether a roof garden counts as a storey for the purpose of determining whether a building is a higher-risk building under the Building Safety Act 2022.  S.65 of the Building Safety Act 2022 defines a higher-risk building as “a building in England that – (a) is at least 18 metres in height or has at least 7 storeys, and (b) contains at least 2 residential units”.  Higher-risk buildings are subject to a more stringent regime under the Building Safety Act 2022 under which, in particular, the Principal Accountable Person must register the building with the Health and Safety Executive before it is occupied and each Accountable Person has various duties imposed upon them in relation to the assessment and management of building safety risks once the building is in occupation.

This decision arises in the context of leaseholders applying to the tribunal for a remediation order requiring the remediation of cladding which represents a fire safety risk.  A remediation order is an order requiring a landlord to remedy specified relevant defects in a specified relevant building by a specified time (s.123(2), Building Safety Act 2022).  In this instance, the leaseholders and landlord were in fact in agreement that a remediation order should be made, but were in dispute as to the exact terms of that remediation order.  with Tthe leaseholders were looking for the order to impose upon the landlord more specific requirements in relation to the remedial works.  The landlord had adduced a number of fire safety reports produced by experts which were relevant to the scope of the order.  However, the tribunal had a number of concerns with the quality of these reports, one of which was that in its view the report writers had erroneously treated the building as if it were not a higher-risk building, which is how the court came to discuss this particular issue.the particular issue of whether a roof garden can constitute a storey.

In addition to defining higher-risk buildings (see above), s.65 of the Building Safety Act 2022 also grants the Secretary of State a power to supplement this definition, including by defining “storey”.  The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023, which were enacted by the Secretary of State pursuant to this power, do not in fact attempt to define “storey”.  However, they do list certain items which will not constitute a storey, including “any storey which is a roof-top machinery or roof-top plant area or consists exclusively of roof-top machinery or roof-top plant rooms” (reg.6, 2023 Regulations).  After these Regulations had come into effect, the Government published guidance on its website relating to “the legal criteria for determining whether a building is considered a higher-risk building”.  This guidance offers further information on what does and does not constitute a storey which goes beyond the content of the Regulations, including that “A storey must be fully enclosed to be considered a storey. … Open rooftops such as rooftop gardens are not considered storeys.”  

The FTT takes the view that the guidance and Regulations are inconsistent.  This is on the basis that whilst the guidance provides that “[o]pen rooftops such as rooftop gardens are not considered storeys”, the tribunal essentially interprets reg.6 of the Regulations (which makes no such reference to roof gardens) as providing an exhaustive list of items which will not constitute a storey.  The Tribunal states that if a storey consisting “exclusively [emphasis added] of roof-top machinery or roof-top plant rooms” (emphasis added) does not constitute a storey (per the Regulations), it follows by implication that “a useable roof top containing a roof garden together with plant/machinery would count as a storey” (para. 62).  It goes on to doubt the status of the guidance, for a variety of reasons including its nature as a “continuously changing resource”, concluding that it does “not constitute a reliable interpretation of law” (paras 72-74).  The Tribunal effectively goes on to express a view that the building is a higher-risk building, albeit noting that formally it has no jurisdiction to make such a declaration.

Whilst treating the list at reg.6 as an exhaustive list is consistent with the rule of statutory interpretation that expressio unius est exclusio alterius (the inclusion of the one is the exclusion of the other), it does in this particular context rather defy common sense.  It cannot be that the FTT really believed that anything not contained within that list is capable of constituting a storey.  There must logically be minimum requirements in respect of what may constitute a storey.  The Tribunal appears to imply that the difference is usability - the roof garden makes the storey useable.  However, it is difficult to see where they get this from the language in the Regulations, in particular given that the other items listed as not constituting a “storey”, “any storey which is below ground level” and “any storey consisting of a gallery with an internal floor area that is less than 50% of the internal floor area of the largest storey vertically above or below it which is not below ground level”, could quite easily be useable.

In relation to the status of the guidance, this is not the first time where the Government has been criticised for appearing to use guidance to amplify rather than merely explain the law.  For example, the Joint Committee of Statutory Instruments were critical about how the Government used guidance aimed at the public in relation to the coronavirus laws in this manner.

However, in this instance, to me the Government guidance does offer an explanation of the Regulations which is much more consistent with the ordinary and natural meaning of the word “storey” than the FTT’s decision.  If you asked a lay person whether something does or does not constitute a storey, a key factor that a lay person would take into account is whether or not that storey is enclosed.  A storey would normally be understood as having walls and a ceiling.  In fact, the Oxford English Dictionary defines “storey” as “each of the sections of a building comprising all the rooms [emphasis added] that are on the same level; the room or set of rooms which comprise one such level”.  The relevant definition of room is “A compartment within a building enclosed [emphasis added] by walls or partitions, floor and ceiling”. If the court is adopting a literal approach to statutory interpretation, then words should be given their ordinary and natural meaning.  Therefore, when the Tribunal refers to the fact that there is no mention of the requirement that a storey be enclosed anywhere other than the government guidance, this rather misses the point that under a literal approach there is no need for such a mention.  A storey needing to be enclosed is inherent in the ordinary meaning of the word.  It follows logically from this that the reason why the Regulations needed to draw attention to roof-top machinery / plant area is to make clear that on their own they would not be considered a storey even if they were enclosed.  Without this specific reference, this may not be readily evident from the ordinary meaning of the word “storey”.  This logic also works for the other items listed in reg. 6.  Therefore, a requirement that a storey be enclosed is not inconsistent with the wording in reg. 6. 

In my view, the only way that the Tribunal’s approach might be justifiable is on the basis of a purposive approach.  The FTT comments that “one of the concerns behind the definition of ‘storey’ for fire safety considerations must be where people might be located the event of a fire” (sic), although the Tribunal does not offer any evidence to support that statement.  In Dame Judith Hackett’s report, the justification for the more stringent regime (which at that stage was envisaged as applying to buildings with 10 storeys or more) refers to the fact that fire-related fatalities are more likely in buildings of that nature.  Although it is not stated expressly anywhere in that report that that is because people may be located on the upper floors of that building, that seems like a reasonable assumption to make as an explanation.  In the Grenfell Tower fire for example, the vast majority of those people who were killed were situated at the 11th storey or above.  On this basis, it might be considered that it is justifiable to count the roof garden as a storey as people might be using the roof garden at the time of the fire.

Following this decision, a note has been added to the guidance on the Government website stating that it is considering this decision.  However, in any event, this is of course merely a decision of the FTT and therefore another court or tribunal would not be bound by it.  Furthermore, there is the distinct possibility that the decision will be appealed.  In fact, permission to appeal this case to the Upper Tribunal has already been granted, with the grounds of appeal focusing on the FTT’s jurisdiction to make a decision at variance with the expert evidence before it.

The uncertainty around the definition of “storey” does feel like something which could have been avoided through the inclusion of a proper definition in the Regulations.  Without a proper definition, it is exactly the type of term which is open to different interpretations and leaves scope for lawyers’ arguments as to what does and does not fall within the definition.  This is doubly so given the important consequence of the definition which affects whether or not a building falls within the higher-risk regime or not.